ANALYSIS:Minister for Health and ombudsman look to be on collision course after State is accused of 'wilful disregard for law' over four decades, writes JAMIE SMYTH
MRS B, a 79-year-old medical card holder, was found to need long-term nursing home care in 1999 after suffering a stroke. Her medical card should have entitled her to a free nursing home place from her health board but, despite repeated complaints over a period of 11 years, she remains in a private nursing home paying weekly fees of €1,050.
Her plight has been largely ignored by the health authorities; she gets a subvention from the State worth €402 and struggles to pay the rest.
This is one of 1,200 complaints made to the Ombudsman and Information Commissioner Emily O’Reilly by vulnerable older people and their families over the past 25 years. There are countless other cases of financial hardship and suffering outlined in the report, which accuses successive governments, the HSE and the Department of Health of a wilful “disregard for the law” by failing to provide nursing home care to older people who need it.
A key conclusion of the report is that the Health Act 1970 requires the State to provide nursing home care for those who need it. Yet, over four decades, health boards have failed to provide this public care, forcing very many people to enter costly private nursing homes. The report also says the level of subvention provided by the State to these people was often inadequate, causing them and their families significant financial hardship.
These conclusions are potentially significant as, if confirmed by the courts, it could leave the State exposed to compensation claims from tens of thousands of people who have been forced to seek private care. At least 300 court cases are pending on this issue, and legal experts predict yesterday’s report could encourage more claims.
Minister for Health Mary Harney acknowledged in 2004 that the State had failed medical card holders by illegally charging them for public nursing home care. This led the Department of Health to establish the Nursing Home Repayment Scheme to compensate individuals and families for charges incurred between 1998 and 2004.
But Harney has rejected the ombudsman’s legal analysis on entitlements and expressed fundamental concerns about the way the investigation was undertaken.
A key concern of Government is that the report could impinge on the 300 outstanding legal actions. There is also concern that it went beyond the jurisdiction of the ombudsman by considering the “wider government process”.
The report is scathing of successive governments for failing to clarify entitlements and leaving people confused as to their entitlements. It accuses the Government of refusing to co-operate with the inquiry and the most serious “jurisdictional challenge” ever undertaken against the ombudsman.
The tone of the report is particularly harsh, accusing the State agencies and successive governments of non-responsiveness, a reluctance to face reality, intransigence and a very poor sense of the public interest. It juxtaposes the constitutional commitment of the State to safeguard the “economic interests of weaker sections of the community” including the aged with its policy of settling legal cases that may have set a precedent on the right to nursing home care before they are heard in court.
The ombudsman says the Government’s attempt to clarify the law on access to nursing home care – the Nursing Home Support Scheme – represents an improvement. But she criticises the presentation of the strategy, which is called the “Fair Deal” by the department, as political spin and concludes that it is a “poorly drafted act” that “fails to meet any reasonable standard of clarity”.
She also raises questions over the State’s commitment to provide nursing home care against a background of budget cuts and the ongoing closure of public homes.